court, whether it be felony or no; and upon the fact thus shown it appears to be felony, the court will not record the confession, but admit him afterward to plead not guilty. And this seems to be a case of the same nature, being for the most part a mistake in point of law, and in the conduct of his pleading; and though a man by mispleading may in some cases lose his property, yet the law will not suffer him by such niceties to lose his life. However, upon this doubt, demurrers to indictments are seldom used, since the same advantages may be taken upon a plea of not guilty, or afterward, in arrest of judgment, when the verdict has established the fact." III. PLEA III. A plea in abatement is principally for a misnomer, a wrong IN ABATEname, or a false addition to the prisoner. As, if James Allen, gen- MENT. tleman, is indicted by the name of John Allen, esquire, he may plead that he has the name of James, and not of John, and that he is a gentleman, and not an esquire; and, if either fact is found by a jury, then the indictment shall be abated, as writs or declarations may be in civil actions, of which we spoke at large in the preceding volume. But, in the end, there is little ad 2 Hal., P. C., 225. (5) The statute 7 Geo. IV., c. 64, s. 20, enacted that no judgment upon any indictment or information for any felony or misdemeanor, whether after verdict or outlawry, or by confession, default, or otherwise, shall be stayed or reversed for want of the averment of any matter unnecessary to be proved; nor for the omission of the words "as appears by the record," or "with force and arms," or "against the peace," nor for the insertion of the words "against the form of the statute," instead of the words "against the form of the statutes," or rice versa; nor for that any person mentioned therein is designated by a name of office, or other descriptive appellation, instead of his proper name; nor for omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense; nor for stating the time imperfectly; nor for stating the offense to have been committed on a day subsequent to the finding of the indictment or exhibiting of the information, or on an impossible day, or on a day that never happened; nor for the want of a proper and perfect venue, where the court shall ap h See vol. iii., page 302. pear by the indictment or information Since this statute, therefore, by plead- (6) As to pleas in abatement in general, see 1 Chit., Crim. L., 2d ed., 445 to 451; 2 Hale, 236 to 239; Hawk., b. 2, c. 34; Com. Dig., Abatement; Bac. Abr., Abatement. An athidavit of the truth of the plea must be filed; 4 & 5 Ann., c. 16, s. 11.—[CHITTY.]t *In New York, it is enacted that no indictment shall be deemed invalid, nor shall the trial, judgment, or other proceedings be stayed, for various causes principally specified in the preceding part of note (5), or "by reason of any other defect or imperfection in matters of form, which shall not tend to the prejudice of the defendant."-(2 R. S., 728, § 52.) See ante, p. 333, n. *. VOL. IV.-B B 385 [335] vantage accruing to the prisoner by means of these dilatory pleas; because, if the exception be allowed, a new bill of indictment may be framed, according to what the prisoner in his plea avers to be his true name and addition. For it is a rule, upon all pleas in abatement, that he who takes advantage of a flaw must at the same time show how it may be amended.' Let us, therefore, next consider a more substantial kind of plea, viz., IV. SPE CIAL PLEAS 1. Autrefois acquit. IV. Special pleas in bar, which go to the merits of the indictment, and give a reason why the prisoner ought not to answer it at all, nor put himself upon his trial for the crime alleged. These are of four kinds: a former acquittal, a former conviction, a former attainder, or a pardon. There are many other pleas which may be pleaded in bar of an appeal;i but these are applicable to both appeals and indictments. 1. First, the plea of autrefois acquit,' or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offense. And hence it is allowed as a consequence, that when a man is once fairly found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offense, he may plead such acquittal in bar of any subsequent accusation for the same crime. Therefore, an acquittal on an appeal is a good bar to an indictment on the same offense. And so, also, was an acquittal on an indictment a good bar to an appeal by the common law ;k and, therefore, in favor of appeals a general practice was introduced, not to try any person on an indictment of homicide till after the year and day within which appeals may be brought were past; by which time it often happened that the witnesses died, or the whole was forgotten. To remedy which inconvenience, the statute 3 Hen. VII., c. 1, enacts, that indictments shall be proceeded on immediately, at the king's j 3 Mod., 194. *2 Hawk., P. C., 373. i 2 Hawk., P. C., ch. 23. (7) And by the stat. 7 Geo. IV., c. (9) The general rule upon this sub64, s. 19, the court, if satisfied by affi- ject is, that the previous indictment must davit or otherwise of the truth of a plea have been one upon which the defendant of misnomer, or want of addition, or could legally have been convicted; upon wrong addition, may forthwith amend which his life or liberty was not merely the indictment or information, and call in imaginary, but in actual, danger; and, upon the defendant to plead as if no consequently, in which there was no masuch dilatory plea had been pleaded. terial error. 4 Rep., 39, 40; 1 Leach, See 8 C. & P., 565. 448; 2 Hale, 248; Hawk., b. 2, c. 35, s. 8; 3 B. & Cr., 502; 1 Brod. & B., 473.-[CHITTY.] The test appears to be whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first. (8) As to this plea in general, see 1 Chit., Crim. L., 2d ed., 452 to 461; 2 Hale, 240 to 250; Hawk., b. 2, c. 35; Com. Dig., Indictment, (L.); Burn, Just., Indictment, xi., 4 to 45; and see the notes on the precedents of that plea in 4 Chit., Crim. L., 2d ed.-[CHITTY.] suit, for the death of a man, without waiting for bringing an [336] appeal; and that the plea of autrefois acquit on an indictment shall be no bar to the prosecuting of any appeal.* convict. 2. Secondly, the plea of autrefois convict," or a former con- 2. Autrefois viction for the same identical crime, though no judgment was ever given, or perhaps will be (being suspended by the benefit of clergy or other causes), is a good plea in bar to an indictment. And this depends upon the same principle as the former, that no man ought to be twice brought in danger of his life for one and the same crime. Hereupon it has been held that a conviction of manslaughter, on an appeal or an indictment, is a bar even in another appeal, and much more in an indictment, of murder; for the fact prosecuted is the same in both, though the offenses differ in coloring and in degree. It is to be observed, that the pleas of autrefois acquit and autrefois convict, or a former acquittal and former conviction, must be upon a prosecution for the same identical act and crime." But the case is otherwise in attaint. 3. Thirdly, the plea of autrefois attaint, or a former attain- 3. Autrefois der, which is a good plea in bar, whether it be for the same or any other felony. For wherever a man is attainted of felony, by judgment of death either upon a verdict or confession, by outlawry, or, heretofore, by abjuration; and whether upon an appeal or an indictment, he may plead such attainder in bar to any subsequent indictment or appeal, for the same or for any other felony; and this because, generally, such proceeding on a second prosecution can not be to any purpose; for the prisoner is dead in law by the first attainder, his blood is already corrupted, and he hath forfeited all that he had; so that it is absurd and superfluous to endeavor to attaint him a second time. But to this general rule, however, as to all others, there 12 Hawk., P. C., 377. (10) As to this plea in general, see 1 Chit., Crim. L., 462, 3; 2 Hale, 251 to 255; Hawk., b. 2, c. 36, s. 10 to 17; Burn, Just., Indictment, xi.-[CHITTY.] (11) Of the same nature with the m Ibid., 375. pleas of autrefois acquit and autrefois *The provisions of law on this subject in New York are the following: When a defendant is acquitted of a criminal charge, upon trial, on the ground of a variance between the indictment and the proof, or upon an an exception to the form or substance of the indictment, he may be tried upon a subsequent indictment for the same offense; but where he is acquitted upon the trial, on the merits and facts, and not upon the grounds before stated, he may plead such acquittal in bar of any subsequent accusation for the same offense, notwithstanding any defect in form or in substance in the indictment upon which the acquittal was had.—(2 R. S., 701, § 24, 25.) So, also, when a defendant is acquitted or convicted upon an indictment for an offense consisting of different degrees, he can not thereafter be tried or convicted on an indictment for a degree of the same offense different from that of which he had been acquitted or convicted; nor can he be tried or convicted for any attempt to commit the offense charged in the indictment, or to commit any degree of such offense.-(2 R. S., 702, § 28. See Revisers' notes, 3 R. S., 836.) are some exceptions, wherein cessante ratione, cessat et ipsa lex. [337] As, 1. Where the former attainder is reversed for error, for then it is the same as if it had never been; and the same reason holds where the attainder is reversed by Parliament, or the judgment vacated by the king's pardon, with regard to felonies committed afterward. 2. Where the attainder was upon indictment, such attainder is no bar to an appeal; for the prior sentence is pardonable by the king; and if that might be pleaded in bar of the appeal, the king might in the end defeat the suit of the subject by suffering the prior sentence to stop the prosecution of a second, and then, when the time of appealing is elapsed, granting the delinquent a pardon. 3. An attainder in felony is no bar to an indictment of treason, because not only the judgment and manner of death are different, but the forfeiture is more extensive, and the land goes to different persons. 4. Where a person attainted of one felony is afterward indicted as principal in another, to which there are also accessories, prosecuted at the same time; in this case it is held that the plea of autrefois attaint is no bar, but he shall be compelled to take his trial for the sake of public justice, because the accessories to such second felony can not be convicted till after the conviction of the principal. And from these instances we may collect that the plea of autrefois attaint is never good but when a second trial would be quite superfluous.o1 4. Pardon. 4. Lastly, a pardon may be pleaded in bar," as at once destroying the end and purpose of the indictment, by remitting that punishment which the prosecution is calculated to inflict. There is one advantage that attends pleading a pardon in bar, or in arrest of judgment, before sentence is past, which gives it by much the preference to pleading it after sentence or attainder this is, that by stopping the judgment it stops the attainder, and prevents the corruption of the blood, which, when once corrupted by attainder, can not afterward be restored otherwise than by act of Parliament. But as the title of pardons is applicable to other stages of prosecution, and they have their respective force and efficacy, as well after as before con[938] viction, outlawry, or attainder, I shall, therefore, reserve the more minute consideration of them till I have gone through every other title, except only that of execution. Judgment on these pleas. Before I conclude this head of special pleas in bar, it will be necessary once more to observe, that though in civil actions, Staund., P. C., 107. (13) As to this plea in general, see 1 Chit., Crim L., 466 to 470; Hawk., b. 2, c. 37, s. 60 to 72; Bac. Abr., Pardon, G.-[CHITTY.] See 7 & 8 Geo. IV., c. 28, s. 13, and 9 Geo. IV., c. 32, s. 3; post, p. 400, n. when a man has his election what plea in bar to make, he is concluded by that plea, and can not resort to another if that be determined against him (as, if on an action of debt the defendant pleads a general release, and no such release can be proved, he can not afterward plead the general issue, nil debet, as he might at first; for he has made his election what plea to abide by, and it was his own folly to choose a rotten defense), though, I say, this strictness is observed in civil actions, quia interest reipublicæ ut sit finis litium; yet in criminal prosecutions in favorem vitæ, as well upon appeal as indictment, when a prisoner's plea in bar is found against him upon issue tried by a jury, or adjudged against him in point of law by the court, still he shall not be concluded or convicted thereon, but shall have judgment of respondeat ouster, and may plead over to the felony the general issue, not guilty. For the law allows many pleas by which a prisoner may escape death, but only one plea in consequence whereof it can be inflicted, viz., on the general issue, after an impartial examination and decision of the facts, by the unanimous verdict of a jury." It remains, therefore, that I consider, NOT GUILTY. V. The general issue, or plea of not guilty, upon which plea V. PLEA OF alone the prisoner can receive his final judgment of death. In case of an indictment of felony or treason, there can be no special justification put in by way of plea. As, on an indictment. for murder, a man can not plead that it was in his own defense against a robber on the highway, or a burglar, but he must plead the general issue, not guilty, and give this special matter in evidence. For (besides that these pleas do, in effect, amount to the general issue, since, if true, the prisoner is most clearly not guilty) as the facts in treason are laid to be done proditorie et contra ligeantiæ suæ debitum, and, in felony, that the killing [339] was done felonice, these charges of a traitorous or felonious intent are the points and very gist of the indictment, and must be answered directly, by the general negative, not guilty, and the jury upon the evidence will take notice of any defensive matter, and give their verdict accordingly, as effectually as if it were, or could be, specially pleaded. So that this is, upon all accounts, the most advantageous plea for the prisoner.ris 4 See Appendix, § 1. P 2 Hal., P. C., 239. (14) But this is confined to cases of felony; a defendant having pleaded specially in bar, in all cases of misdemeanor, is precluded from the benefit of the plea of not guilty, if the plea in bar should be found insufficient. 8 East, 107; 1 M. & Selw., 184; 3 B. & C., 502; 2 B. & C., 512. Secus on DemurTrem., P. C., 189; 6 East, 583, rer. 602.-[CHITTY.] r2 Hal., P. C., 258. (15) In cases of indictments or infor mations for misdemeanors, the above rule, as to pleading the general issue, does not apply with the same degree of strictness; for there are some cases where a special plea is not only allowable, but even requisite. Thus, if the defendant fall within any exception or proviso which is not contained in the purview of the statute or clause creating |